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February 24, 2011

Local DA in Georgia makes pitch against sentencing guidelines and for more judicial discretion

Everyone familiar with sentencing debates in the federal system knows the usual terms of modern debates over sentencing guidelines and judicial discretion: federal prosecutors are typically arguing for the federal guidelines to have more bite, while defense attorneys are typically saying that federal judges need to be afforded ample discretion to fit punishments to the unique facets of individual cases and offenders. Sophisticated observers also know that it is the relatively severity of the federal guidelines that in large part account for why federal prosecutors like them and federal defense attorneys like judges to have ample discretion to sentencing outside these guidelines.

Those long accustomed to this long-standing debate over federal sentencing dynamics should find especially interesting this local opinion piece from Georgia, headlined "D.A.’s Corner: Punishment must fit the crime." In this piece, the local district attorney for the Griffin Judicial District, Scott Ballard, makes a pitch against sentencing guidelines for Georgia. Here are excerpts:

There is a movement underway to implement sentencing guidelines in Georgia. Federal courts have used them for years. They work like this. Each crime carries a sentence that is almost set in stone. The judge has the leeway to add a few months to the required sentence. Or, if there is reason to reduce the sentence by a few months, that can be done, too.

Proponents argue that it is fairer. They don’t like our current arrangement which gives the judge wide latitude to sentence. For example, burglary can carry a sentence of from 1 to 20 years.

Here’s the problem. Each crime is different. Each criminal is different. If we are to be fair, judges must be allowed to fit the punishment to the crime.... Sentencing guidelines won’t allow the wiggle-room that is necessary.

Here’s another problem with sentencing guidelines. Criminals fear the unknown. Mandatory sentences work against us. I know from negotiating with defense attorneys that drug dealers sent by Mexican cartels have factored the federal sentences into their deal. They know exactly what the punishment will be if they are caught. It becomes just a risk of doing business. You should see their disappointment when they learn that our judges aren’t boxed in like federal judges are. The life sentence they could face with us wasn’t what they bargained for.

There is another reason sentencing guidelines are a bad idea. The risk of a significantly tougher sentence after a trial induces defendants to plead guilty to a lesser sentence of a guaranteed length. That reduces the cost of unnecessary trials and permits us to focus our energies on the cases that really require a trial. We avoid backlogs and enjoy the benefits that come from the swift disposition of criminal cases.

With sentencing guidelines, the incentive to plead is decreased — the sentence will be similar whether the defendant admits guilt or forces a trial. And if he forces a trial, a lengthy appeal is certain to follow.

Experienced federal sentencing practitioners surely know that this local DA is somewhat off when boldly asserting that mandatory sentencing schemes necessarily reduce incentives to plead guilty. Nevertheless, it seems clear that this DA is uniquely concerned that any proposed guidelines in Georgia would be set at relatively lenient levels because of the state's prison crowding and budget problems. With that backdrop, it is understandable that this DA fears a new legal regime for the state, and it is telling that we are hearing a prosecutor extol the virtues of giving judges very broad discretion at sentencing.

Comments

"Sentencing guidelines won’t allow the wiggle-room that is necessary."

I don't know the Georgia proposals, but as to the federal guidelines, including pre-Booker, this statement is flat-out false.

The ranges vary 25% top to bottom. You get another 25% for acceptance of responsibility, which is given quite a bit. Then there are the factual findings about role in the offense, which account for another 25% (at least) and run heavily toward giving the defendant the benefit of what is generously called a "doubt."

There is more than "wiggle room." There is leaping room, and it's used all the time.

None of this is to mention departures, which are given in 46% of the cases and counting, and 95% of which favor defendants.

I wonder if the author has even set foot in federal court. It doesn't sound like it.

Posted by: Bill Otis | Feb 24, 2011 4:42:22 PM

"[I]t seems clear that this DA is uniquely concerned that any proposed guidelines in Georgia would be set at relatively lenient levels because of the state's prison crowding and budget problems."

Having dealt with the federal sentencing guidelines since 1987, some factors to consider are:

1. According to sentencing commission data, every mandatory or even discretionary guideline was longer than the sentence imposed pre-guidelines sentence So maybe guidelines work if they are draconian.

2. Alot of federal sentencing in practice is driven by mandatory minimums. Maybe mandatory minimums skew the utility of guidelines.

3. It might also mean that if guidelines are preceived as "lenient" even though they might meet the purposes of sentencing (reducing recidivism/protecting the public) they do not meet the purposes of prosecution.

Posted by: k | Feb 24, 2011 9:30:26 PM

Any wiggle room that might otherwise exist is squeezed out by the prosecutor's unfettered wherewithal to stack charges at will...given the infinite numerical possibilities afforded by decades of overcriminalization and the multiplier effects afforded by vague, sweeping, bottomless derivative charges.

Simply put, guidelines, MMs and RICO statutes stand (even post-Booker) as the most effective confession-producing tools since rubber-hose and phonebook beatings in the interrogation rooms of old.

Posted by: John K | Feb 25, 2011 10:42:26 AM

John K --

"Simply put, guidelines, MMs and RICO statutes stand (even post-Booker) as the most effective confession-producing tools since rubber-hose and phonebook beatings in the interrogation rooms of old."

Wrongo. The most effective confession-producing tool is a conscience.

Posted by: Bill Otis | Feb 25, 2011 7:56:28 PM

Bill:

Even by conscience wielding individuals who did absolutely no harm to ANYONE.

Charge stacking IS a problem!

Posted by: albeed | Mar 6, 2011 12:20:52 AM

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